STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NUGGET OIL COMPANY, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 81-284T

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, P. Michael Ruff, held a public hearing in the above- styled case in Chipley, Florida.

APPEARANCES

For Petitioner: Mr. Paul H. J. Mesier, pro se

Post Office Box 1297 Crestview, Florida 32536

For Respondent: Charles G. Gardner, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

The Petitioner, Nugget Oil Company, Inc., filed an application dated January 15, 1981, seeking the issuance of permits for two outdoor advertising signs advertising its place of business. The Petitioner seeks to erect the signs within the city limits of Ponce de Leon, Florida, one being approximately nine-tenths of a mile west of the intersection of State Read 81 and Interstate Highway 10, and the ether being 1.4 miles east of State Road 81 on the north side of Interstate 10. The Respondent disapproved the subject application, alleging that the signs are within 660 feet of the nearest edge of the right-of- way of the interstate highway or federal-aid primary highway system and are allegedly not encompassed by the exceptions provided in Section 479.111, Florida Statutes, in that the signs are not in an area which is commercially or industrially zoned.

One witness testified on behalf of Petitioner, and one witness testified on behalf of the Respondent. Four exhibits were admitted into evidence, three of which were stipulated into evidence by the parties. Petitioner's Exhibit 4 was admitted pursuant to Section 120.58, Florida Statutes, as corroborative of Petitioner's own testimony. At the conclusion of the hearing, the parties requested a transcript of the proceedings. They ultimately waived their right to file proposed findings of fact and conclusions of law. The issue is thus whether the Respondent's denial of the issuance of a permit for the two subject signs for the above reasons was appropriate.

FINDINGS OF FACT

1. The Petitioner has erected two signs advertising a service station business, one of which lies 1.4 miles east of State Road 81 on the north side of Interstate Highway 10, and one of which is located nine-tenths of a mile west of State Road 81 on the south side of Interstate 10. The Petitioner seeks a permit authorizing the erection and maintenance of those two signs. Both signs lie within the corporate limits of the City. of Ponce de Leon. A previous application by the Petitioner was rejected apparently because the subject sign locations were not properly zoned to comply with the exception contained in Section 479.111, Florida Statutes. That is, they were not commercially or industrially zoned and were not in on zoned areas of commercial and industrial character. In denying the instant application, the Respondent has taken the position that the signs, which are within 660 feet of Interstate Highway 10, occupy areas which are located in areas which are "strip zoned" and are therefore improperly zoned. Interstate Highway 10 is part of the interstate system defined in Chapter 479, Florida Statutes. The interstate highway was opened at the time that the signs wore erected, and they can be seen from the main traveled way of Interstate 10. The Respondent contends that strip zoning is prohibited by Title 23, Code of Federal Regulations, Subchapter H, Part 750, "Highway Beautification." The testimony of the Petitioner, as well as the zoning map of the City of Ponce de Leon, Florida, embodied in Petitioner's Exhibit 3, establishes that both of the subject signs are in an area zoned commercial, which official zoning map or plan was adopted by the Commission of the City of Ponce de Leon on January 29, 1976. The Petitioner's testimony also, as corroborated by Petitioner's Exhibit 4, establishes that the Ponce de Leon zoning pattern is not unique or unusual, and that strip zoning is analogous to the term "spot zoning" which is used to imply zoning which is improper or aberrational in its relation to the overall character, use and zoning of the property which surrounds or adjoins a "strip" or "spot zoned" tract.

   
   

2. There was no showing that the commercially zoned area in which the signs are located is out of context with the proper use of property adjoining it along Interstate 10 and around the subject intersection, nor was it shown to be detrimental to the adjoining properties or the proper enjoyment and use of the adjoining properties. No evidence was adduced by the Respondent which would establish that the zoning map and the zoning plan it represents by the City of Ponce de Leon, insofar as it relates to the subject commercially zoned area, is unique, unusual or improper. The subject zoning ordinances and the map were demonstrated to be duly and properly adopted by the City Commission. Finally, The Respondent's own witness conceded that the area in which the signs are located is not strip zoned in a deleterious sense.

   
   

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of these proceedings.

4. Section 479.07, Florida Statutes, provides in pertinent part that: Any person who shall construct, erect,

   operate, use, or maintain, or cause or permit to be constructed, erected, operated, used, or maintained, any outdoor advertising structure, outdoor advertising sign, or outdoor advertisement along any federal aid primary highway or interstate highway within

   any incorporated city or town shall apply for a permit on a form provided by the department. A permanent permit tag of the kind hereinafter provided shall be issued by the department without charge and shall be affixed to the sign in the manner provided

   in subsection (4).

   
   

5. Section 479.11, Florida Statutes, provides in pertinent part:

   
   

   No advertisement, advertising sign or advertising structure shall be constructed, erected, used, operated or maintained:

   1. Within 660 feet of the nearest edge of the right-of-way of all portions of the

      interstate system or the federal-aid primary system except as provided in s. 479.111,

      or within 15 feet of the outside boundary of any federal or state highway . . . .

      
      

6. Section 479.111 provides certain exemptions to the prohibition contained in Section 479.11, to wit:

   
   

   Only the following signs shall be permitted within controlled positions of the interstate and federal-aid primary systems:

   * * *

   (2) Signs in commercial and industrial zoned or commercial and industrial unzoned areas subject to agreement established by s. 479.02.

   
   

7. Rule 14-10.04, Florida Administrative Code, restates in summary the provisions of Section 479.07 and provides the method for applying for and obtaining a permit. The agreement referred to in Section 479.111(2), Florida Statutes, cited above, between the Governor of the State of Florida and the U.S. Department of Transportation is adopted as Rule 14-10.09, Florida Administrative Code. Commercial and industrial zones are defined therein to be areas within 660 feet of the nearest edge of the right-of-way of the interstate or federal- aid primary System, or state highway system zoned commercial or industrial under the authority of state law.

   
   

8. The unrefuted evidence in the record in this case establishes that the subject commercial zone wherein the signs are located is properly zoned pursuant to properly enacted zoning ordinances. Therefore, the signs being erected in commercially zoned areas, they fall within the above exception to the prohibition contained in Section 479.11(1), Florida Statutes, and thus are legally in place and should be permitted pursuant to Section 479.07(1), Florida Statutes. Accordingly, it is concluded that inasmuch as the signs fall within the commercial zoning exception contained in Section 479.111(2), Florida Statutes, the Respondent should issue permits allowing the continued existence of those signs.

RECOMMENDATION

In consideration of the foregoing findings of fact and conclusions of law, the evidence in the record, pleadings and arguments of counsel, and the candor and demeanor of the witnesses, it is

RECOMMENDED:

That a final order be entered by the Department of Transportation granting the petition of Nugget Oil Company, Inc., and permitting the erection and location of the signs described hereinabove located respectively 1.4 miles east of State Road 81 on the north side of Interstate Highway 10, and nine-tenths of a mile west of State Road 81 on the south side of Interstate Highway 10.

RECOMMENDED this 20th day of July, 1981, in Tallahassee, Florida.

P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 1981.

COPIES FURNISHED:

Mr. Paul H. J. Mosier Post Office Box 1297 Crestview, Florida 32536

Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Mr. Jacob D. Varn, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Docket for Case No: 81-000284

Orders for Case No: 81-000284